Opinion
W.C. No. 4-665-105.
October 10, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated February 7, 2006 that denied the claim for temporary total disability benefits (TTD). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was employed by the employer on three separate occasions. The first two periods of employment were terminated because of attendance problems. On August 3, 2005 the claimant began her third period of employment and was told she was on a "short leash" regarding attendance problems. On August 30, 2005 the claimant was tardy by three hours and was suspended for two days. On September 8, 2005 the claimant suffered an admitted industrial injury to her right arm and wrist. On September 12, 2005 the claimant began light duty pursuant to restrictions from the treating physician. The claimant continued to have problems with tardiness and leaving early during her light duty job. On September 23, 2005 the claimant as required by the employer's handbook called in to notify her employer that she would not be in for work due to her mother's illness. The employer prepared a written warning which provided that the claimant would be terminated if she had one more absence in the next 60 days. On September 26, 2005 the claimant returned to work and clocked in tardy. The claimant was given the written warning, and became upset and protested that the warning was not fair. The claimant stated that if the owner was so upset he should fire her and that she wished he would. The owner was informed and called the claimant into his office. The owner found that the claimant had a lousy attitude and was dismissive of his written warning. The owner asked the claimant if she had actually said that she wished he would fire her. The claimant said yes and the owner terminated her.
Based on these findings, the ALJ determined that the claimant was responsible for her termination by engaging in the volitional act of inviting the owner to fire her. The ALJ concluded that the claimant was not terminated for absenteeism but the absenteeism and tardiness problems merely set the backdrop for the owner's decision. The ALJ found the claimant's termination was not due to the effects of the work injury. Consequently, the claimant's claim for TTD benefits following her termination was denied. The claimant appealed.
Section § 8-42-103(1)(g), C.R.S. 2006 and § 8-42-105(4), C.R.S. 2006 (the termination statutes) provide that in cases where "a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held that the term responsible "appears to introduce into the Act the limited concept of `fault' used in termination cases before the supreme court's decision in" PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Under this standard, the fault determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
The termination statutes provide an affirmative defense to a claim for TTD and the respondents bore the burden of proof to establish their applicability. Witherspoon v. Metropolitan Club W.C. No. 4-509-612 (December 16, 2004). White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002). Generally, the question of whether the claimant acted volitionally, and therefore is "responsible" for a termination from employment, is a question of fact to be decided by the ALJ, based on consideration of the totality of the circumstances. Gonzales v. Industrial Commission, supra; Jeppsen v. Huerfano Medical Center, supra. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).
Thus, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ is not required to credit the testimony of a witness, even if it is uncontradicted and unrebutted. Levy v. Everson Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Further, evidence not specifically credited by the ALJ is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). The claimant contends the evidence the ALJ erred because evidence in the record compels a finding that the claimant was not responsible for her termination and the employer initiated the confrontation that led to the termination. We disagree.
There is substantial evidence in the record that supports the ALJ's findings. The operations manager testified that when the claimant was presented with the written warning she refused to sign it and suggested that if the owner was so mad he could fire her. Tr. at 15. The owner testified that claimant was free to sign or not sign the written warning . That she continued to have a "real lousy attitude." The owner asked her if she had made the comment that if he was "so pissed off" that she wished he would fire her. The claimant confirmed the comment and he said "wish granted." Tr. at 43.
While there was evidence that might have supported a different result, that fact affords no basis for relief on appeal. Because the ALJ's determinations are supported by substantial evidence in the record and by reasonable inferences from that record, we may not disturb the order. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The claimant next appears to argue that she was not sufficiently made aware that her job was in jeopardy. There is no requirement that the claimant must have been warned that her job is in jeopardy before she may be held at fault for a termination. See Pabst v. Industrial Claim Appeals Office, 833 P.2d 64 (Colo.App. 1992); see Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo.App. 1996); see also Hernandez v. Fibrotek/VF Corp. W.C. No. 4-500-317 (November 22, 2004). We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated February 7, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ John D. Baird ___________________________________ Thomas Schrant
Georgia P. Martinez, Colorado, Summit Cleaners, Patricia Sykes, Pinnacol Assurance, Candy Whitmer, Denver, CO, Steven R. Waldmann, Esq., Colorado Springs, CO, (For Claimant).
Harvey D. Flewelling, Esq., Pinnacol Assurance, Denver, CO, (For Respondents).